Freelance Isn’t Free

When asked their professions, painters and sculptors generally describe themselves as artists, omitting the fact that most of them do something else that actually pays the bills. It makes perfect sense. Using the shorthand of “artist” projects a sense of seriousness and dedication that otherwise might be lacking if they went into detail about chasing sheetrocking jobs and adjunct teaching here and there or whatever keeps a roof over their heads and clothes on their backs. Still, hunting up paying jobs or shorter-term “gigs” is a well-understood facet of their lives and careers as is, sometimes, the pursuit of payment after the work is done. Payment can be the larger challenge.

“Many, many artists are freelancers and come to us because they haven’t been paid,” said Amy Lehman, director of legal services at New York City’s Volunteer Lawyers for the Arts.

The City of New York recently has offered these artists, and freelancers in general, some help, having passed last fall a “Freelance Isn’t Free” law that provides protection for a wide array of workers, such as filmmakers, graphic designers, home contractors, independent artists, photographers and web designers. (Lawyers, medical professionals and sales representatives are specifically excluded.) The law requires any job valued at more than $800 involving an independent contractor to be written down in the form of a contract, listing the specific services to be rendered, the rate and method of payment, the value of the work and when the freelancer is to be paid.

The law also prohibits any form of retaliation or intimidation on the part of the individual or company hiring the freelancer, such as damaging the independent contractor’s chances of finding similar employment in the future, and the statute applies regardless of the freelancer’s immigration status. Freelancers have two years to report a failure to be paid to New York City’s Department of Labor Standards (they are allotted six years to report some form of retaliation), and the agency will then send a certified letter to the employer who must respond to the complaint within 20 days. After the employer’s response is received, the Department of Labor Standards will issue a ruling on the merits of the complaint within 20 days.

Failure to abide by the provisions of the law may entail financial damages to the employer, such as a $250 fine for failure or refusal to provide a written contract to the freelancer, and civil penalties can reach up to $25,000 if the Department of Labor Standards finds that the employer has engaged in a “pattern or practice” of violations.

“Too often, employers do what they think they can get away with, which includes not paying their contractors,” Lehman said. “They may assume that artists don’t have the resources to bring them to court. Now, there is a tool for people to use to enforce their rights.”

This is the first of its kind law in the United States, putting the power of the government behind the rights of freelancers. According to the Freelancers Union, a nonprofit organization in New York, one-third of the city’s workforce are freelancers some or all of the time; nationally, 35 percent of the nation’s workforce – or 55 million individuals – are independent contractors of one type or another, a number that is expected to rise to 50 percent by 2020.

A failure to be paid promptly or at all is not news to artists, many of whom have war stories to tell. Camille Przewodek, an artist in Petaluma, California, filed a case in small claims court some years ago against a clothing manufacturer who refused to pay her for some advertising illustration. “I won the case, because the guy didn’t show up at court,” but collecting the debt took longer, finally requiring the Los Angeles sheriff’s office to seize the manufacturer’s bank account in order for her to receive the $5,000 owed. “I only got paid, because the client forgot to empty his bank account.”

North Salem, New York artist Tom Christopher was not as fortunate, never receiving payment for a portrait he was contracted to paint of actor Leon Askin, who was best known for the German character he played, General Albert Burkhalter, on the television series “Hogan’s Heroes.” The portrait was for the California Museum of Science and Industry. “The…guy never paid up,” he said. “That fat guy with the stupid German accent kept promising to pay me ‘next week,’ and then he just stopped answering my calls. I called the director of the museum, who claimed to ‘know nothing,’ just like Colonel Klink in the TV show. The whole thing was nutty, and I wrote it off as a bad debt.”

Christopher did learn from the experience not to take any job – and most of his freelance work has been in advertising illustration – without first receiving a deposit of between 30 and 50 percent. “You can completely trust the person hiring you,” he said, “but that person may get fired or transferred, and the next person may have something else in mind that doesn’t include you.”

Getting money up-front means that an employer has “some skin in the game” and is more apt to follow through on a project and pay a freelancer in full, said San Clemente, California-based artist career consultant Maria Brophy. “If a client says that he needs the job done by Friday but it takes the accounting department two weeks to cut a check, tell him to pay the deposit through a corporate credit card or to write you a personal check, and let him get reimbursed by accounting.”

Whether protected by New York’s Freelance Isn’t Free” law or not, artists and other independent contractors around the United States should require a written contract as part of the agreement, stipulating the work to be done, the price of the job and when and how payment will be made. Payment within 30 days is optimal, although 60 days is more apt to be the norm. Above 90 days is unconscionable, and contractors may ask that a late fee be included in the agreement. (Good luck getting that.)

Perhaps, just good luck. Amy Lehman herself noted that she herself was once stiffed by a client. “The person just closed up shop and moved out of state. I couldn’t file an action against him, because I didn’t have an address. After a while, I just decided that I was never going to get paid.”